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The defendant moved for summary judgment and supported the motion with its project manager’s affidavit and over 30 exhibits – mainly invoices and bills. The Trustee moved to strike about half of the exhibits on hearsay grounds.

Ruling: Motion denied.

Key Rules:

– summary judgment evidence (either for or against) must be admissible at trial;

– copies of documents can’t simply be “slapped on the back of a party’s statement of facts or its response” with a statement that the documents are “true and correct”;

– a summary judgment affidavit which refers to documents must lay the necessary foundation for those documents;

– ‘hearsay within hearsay’ is not admissible unless each layer of hearsay is properly admitted under a hearsay exception;

– documents generated by third parties can sometimes qualify as admissible business records where they are integrated into the proponent’s own business records and the business relies on those third party records**;

– a statement is hearsay only if offered to prove the truth of the matter asserted;

– a statement isn’t hearsay if it’s offered to show its effect on the witness;

– out-of-court invoices are not hearsay where they are offered to show their amount only (not for their contents’ truth)

¶¶ 2-3; FRE 801(c)(2), 803(6).

Applying these rules, the Court found that the bills and invoices appended to the defendant’s affidavit were not offered for their truth. That is, the contractor didn’t offer the invoices to prove to the court that the third party vendors and contractors actually performed the work contained on the invoices.

Instead, the invoices were offered to show their effect on the project manager and to illustrate why he charged certain the amounts in question.

The invoices substantiated the affidavit testimony that the defendant had to hire substitute subcontractors after the Debtor failed to perform and went out of business. ¶¶ 2-3.

The Court also emphasized that the project manager had hands-on involvement with the projects in question and spoke from personal knowledge about what work was was completed on the jobs. ¶ 3.

Comments: The hearsay (offered for the truth) vs. non-hearsay (to show effect on listener/witness) distinction is a fine-line one. The effect-on-the-listener/witness rule seems amorphous in that whenever someone attaches a third party’s records to an affidavit, all he has to argue is that the invoices are offered purely to show there impact on the listener/witness.

The evidence rules laid out in this case should prove helpful to business litigants who are trying to get a third party’s records before a court or jury over a hearsay objection.

In Majmudar, the plaintiff and defendant entered into a five-year written employment contract totaling about $625K plus some additional benefits. The defendant fired the plaintiff just 15 months into the 60-month term and plaintiff sued under the IWPCA.

After a bench trial, the trial court entered judgment for the plaintiff on his breach of contract count but found for the defendant employer on the Wage Act claim.

On the breach of contract count, the court found that the employer defendant prematurely breached the 5-year contract by firing the plaintiff with 45 months left on the contract. But the court only awarded the plaintiff $173K, less than two years’ worth of payments.

The court found the plaintiff failed to make reasonable efforts to find substitute employment and so didn’t mitigate his damages.

On the IWPCA count, the trial court sided with the defendant on the basis that the statute doesn’t allow recovery for future payments. Plaintiff appealed.

Affirming the trial court, the First District focused on the IWPCA language allowing a plaintiff to recover earned wages or final compensation. “Wages” are broadly defined as any compensation owed by an employer to an employee pursuant to an employment contract.

The IWPCA requires an employer to pay final compensation to the separated employee by the next scheduled payday and to pay current employees (bi-weekly or semi-monthly) no later than 13 days after the end of the last pay period. 820 ILCS 115/4, 5.

In rejecting plaintiff’s claim for 45 months of future payments, the Court looked to dictionary (Black’s and Merriam-Webster’s) definitions of “compensation” (payment received in return for service rendered) and “owe” (to be obligated to pay for something received) for guidance.

Applying these definitions, the Court held that once the defendant terminated the employment contract, the defendant no longer received anything of value from the plaintiff.

This led the Court to squarely hold that unpaid future wages under a terminated contract are not “final compensation” and cannot be recovered under the Wage Act. ¶ 15.

Comments: For such a high-dollar contract, the details were surprisingly sparse.

The plaintiff could have pressed for a contract term that said if the employer untimely terminated the contract, plaintiff could accelerate the remaining payments under thr contract.

Majmudar gives the IWPCA a narrow reading – applying it to wages previously earned by a separated employee; not to future payments owed on a terminated contract.

Let’s see. 12 court hearings over a year-and-a-half devoted entirely to discovery disputes. 7 missed deadlines – 3 of which were “final” – and one of those 3 was even “final, final, final, final, final!”. And still – no discovery compliance from the plaintiff. There was even an intermediate contempt sanction of a $500 fine and another court order assessing a daily fine of $50 to induce plaintiff to appropriately respond to defendant’s discovery. Again, nothing. So what’s a judge to do?

In Illinois, she has options. Many of them. Supreme Court Rule 219 gives the court wide latitude to fashion myriad sanctions against litigants to ensure discovery compliance and dissuade future violations. The sanctions options include striking pleadings and defenses, entering default orders and barring a violating party from raising defenses or offering evidence on the subject of the unanswered discovery requests. Even outright dismissal with prejudice, the harshest sanction of all, is allowed if the discovery abuse is severe enough. See SCR 219(c)(v).

Master Hand Contractors, Inc. v. Convent of Sacred Heart, 2013 IL App (1st) 123788-U, a factual snapshot of which is the lead-in to this article, illustrates especially egregious discovery conduct. There, the trial court dismissed a mechanics’ lien plaintiff’s suit with prejudice after it violated 7 court discovery orders (3 with “final” deadlines) over an 18-month time span. The First District affirmed the trial court’s ultimate sanction based on the plaintiff’s pattern of discovery abuses and blatant flouting of multiple court orders.

Facts: Plaintiff general contractor filed a mechanics lien suit to recover on a $2,000,000-plus construction contract for renovation work on a private school. The plaintiff’s lien claim was nearly $400,000. The case quickly degenerated into an acrimonious discovery dispute with the defendant school repeatedly serving unanswered discovery requests on the plaintiff contractor. Most of the school’s discovery requests sought plaintiff’s “electronically stored information” (ESI). Over the course of a year-and-a-half and 12 separate hearings devoted to discovery issues, the contractor still hadn’t properly answered the school’s ESI requests. Eventually, the trial court – after first assessing several progressive sanctions short of dismissal – had seen enough and dismissed plaintiff’s suit with prejudice under Supreme Court Rule 219(c)(v). Master Hand, ¶¶ 9-10. The contractor appealed on the basis that the dismissal sanction was too harsh.

Supreme Court Rule 219 provides for progressive sanctions including dismissal with prejudice. A court also has inherent authority to control its docket and to sanction discovery abuses. Master Hand, ¶15. Dismissal power is proper where the “record shows deliberate and continuing disregard for the court’s authority.” Id. A trial court’s decision to impose sanctions is reviewed for an abuse of discretion which means, in the discover sanctions context, that “no reasonable person would agree with the position adopted by the trial court.” Master Hand, ¶ 13.

Here, because plaintiff violated so many court orders over such a lengthy time frame, the trial court had discretion to dismiss plaintiff’s case. The First District also noted that the trial court “progressively disciplined” the plaintiff; giving it many chances to comply with discovery – as evidenced by the three “final” deadlines issued by the court – and to escape sanctions. Master Hand, ¶ 15. The Court also pointed out that the trial judge was uniquely qualified to assess the propriety of the defendant’s discovery requests (which plaintiff claimed was “abusive”) since the judge specifically handled mechanics lien cases and was versed in document-intensive construction disputes.

Take-aways: Discovery rules and court orders aren’t suggestions or advisory. While dismissal with prejudice is extreme and there are more mild sanctions choices, the trial court here didn’t dismiss plaintiff’s case lightly. In fact, each sanction assessed by the court was carefully calibrated to give the plaintiff a chance to comply with discovery and to have its case heard on the merits. But after so many hearings and blown deadlines, the case became farcical and the court had no choice but to dismiss it. Master Hand also underscores the importance of having proper ESI search and production protocols in place. It’s clear that plaintiff’s lack of ESI discovery savvy was a major deficiency in its discovery responses and was critical to the trial court’s dismissal sanction.